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Asbury v. Key Mobility Servs., Ltd.

Court of Appeals of Ohio, Second Appellate District, Montgomery County

July 18, 2008, Rendered

Appellate Case No. 22509

Opinion

FAIN, J.

 [*P1]  Plaintiffs-appellants Terrance Asbury (legal guardian and spouse of Brenda Asbury), Sean Asbury, Trenton Asbury, Ian Asbury, and Jerry Taylor, executor of the estate of Jean Taylor, appeal from a summary judgment rendered in favor of defendants-appellees EZ Lock, Inc. and Key Mobility Services, Ltd.

 [*P2]  The Asburys and Taylor contend that the trial court erred in excluding the testimony of their expert, Dr. Wiechel, for insufficient reliability under Evid. R. 702 and Daubert v. Merrell Dow Pharmaceuticals (1993), 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469. The Asburys  [**2] and Taylor argue that Dr. Wiechel's qualifications were exemplary, and that his methodology was adequately tested, was subject to ample peer review, enjoyed a low rate of error, and has garnered general acceptance in the scientific community.

 [*P3]  We conclude that the trial court did not abuse its discretion in excluding Dr. Wiechel's testimony. Although Dr. Wiechel's expert credentials were not in question, his testimony did not comply with Evid. R. 702(C), because his theories were not objectively verifiable and the tests, to the extent any tests were performed, did not reliably implement his theories and were not conducted in a way that would yield an accurate result. Once Dr. Wiechel's testimony was excluded, there was no evidence to causally connect any alleged actions or inactions of EZ Lock or Key Mobility to the injuries that occurred. Accordingly, the judgment of the trial court is Affirmed.

 [*P4]  This case involves an auto accident that took the life of Jean Taylor and severely injured Jean's adult daughter, Brenda Asbury. On January 25, 2003, Jean Taylor, Brenda Asbury, and Brenda's best friend, Patricia Miller, went shopping. They ended up at Gordon Food Supply (GFS), where they  [**3] made several purchases. After the women left the store, Patricia put her purchases in the back seat of the car, which was a Ford Escort. Brenda and her mother were at the rear of the Escort, placing their items in the trunk, when they were struck by a 1988 Ford 150 Econoline van driven by Eric Bigler. The two women were thrown into the air and landed in the parking lot. Jean died at the scene and Brenda sustained significant permanent injuries.

 [*P5]  At the time of the accident, Bigler was a forty-five year old quadriplegic who had been disabled since the age of fifteen, after breaking his neck in a swimming accident. Bigler obtained driving privileges in the late 1980's, and his van was originally modified in 1989 with zero effort steering and braking, which made the van easier to steer and brake than normal vehicles. Due to restricted mobility in Bigler's fingers and hands, a tri-pin mechanism was attached to the steering wheel. Once Bigler's left hand was in the mechanism, he could push forward to brake and push back to accelerate. He could also activate turn signals by flipping the device to the left or the right.

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2008-Ohio-3609 *; 2008 Ohio App. LEXIS 3065 **

TERRANCE W. ASBURY, et al., Plaintiff-Appellants v. KEY MOBILITY SERVICES, LTD., et al., Defendant-Appellees

Subsequent History: Discretionary appeal not allowed by Asbury v. Key Mobility Servs., 2008 Ohio 6813, 2008 Ohio LEXIS 3646 (Ohio, Dec. 31, 2008)

Prior History:  [**1] (Civil Appeal from Common Pleas Court). Trial Court Case No. 05-0530.

CORE TERMS

Lock, bolt, van, wheelchair, manufacturer, Mobility, reliability, chair, stabilizer, angled, installed, alarm, claimant, wheels, supplier, compensatory, scientific, bracket, driver, tip, proximate, steering, causal, drive, push, wire, accelerated, methodology, deposition, braking

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Torts, Products Liability, Types of Defects, Design Defects, Manufacturing Defects, Evidence, Burdens of Proof, Preponderance of Evidence, Causation, Proximate Cause, Theories of Liability, Misrepresentation, Types of Evidence, Circumstantial Evidence, Marketing & Warning Defects, Negligence, Elements, Negligence, Admissibility, Expert Witnesses, Helpfulness, Daubert Standard, Expert Witnesses, Testimony, Qualifications, Judicial Officers, Judges, Abuse of Discretion